Hellman v. Hellman

Finally, significant pe it that neither their any appeal appellees allege tition nor in the instant do prejudice resulting delay to them from the in this case. In fairness, appellees must their be noted that based arguments action and all below their herein on Rule 229(e), requires showing prejudice. which no How ever, as we have determined the lower court’s action equivalent granting pros, to the of a non we find the prejudice lack of asserted to be an indi additional factor cating propriety reversing the order entered be low.

The order of the lower court is reversed and mat- appearing Term, ters at No. 82 October 1971 and No. July Term, 1971 in the lower court are reinstated. WATKINS, participate Judge, President did not in the consideration or decision of this case.

371 A.2d 964 HELLMAN, Appellant, Ginette Albert HELLMAN. Superior Pennsylvania. Court of

Argued Dec. 1976. Decided March Engel, Allentown, Clayton Hyman, Sandor with him T. Allentown, appellant. for Epstein,. S. Allentown,

Howard with him Morris Ef- ron, Allentown, appellee. for WATKINS,

Before Judge, JACOBS, President HOFFMAN, CERCONE, PRICE, der VOORT, VAN SPAETH, JJ.

PRICE, Judge: 5, 1972,

On appellant-wife June stip- entered into a appellee-husband ulated order with the by which the hus- agreed pay per band support week of his $140 September wife. 23, 1974, On petitioned the husband court below to support order, reduce the amount of the alleging earnings. January 23, 1975, reduced On petitioned husband sup- lower court to terminate his port obligation, alleging, alia, long- inter that he could no compelled provide er be support for his wife because

539 engaged she had in adulterous conduct. After a consoli- hearing dated on both the lower court termi- petitions, finding support nated order the wife appeal had committed followed.

By statute, order. a order is not a final 19, 1939, (17 The 1 Act of June P.L. No. P.S. § provides may, time, any 263), court below at § “ modify support, . vacate an order . .as many Thus, case warrant.” we held on occa- sions that the modification or termination of a order is within the discretion of the court be- reasonable upon low based a consideration of the relevant fac- all g., Fryling Fryling, tors. E. v. Commonwealth ex rel. Pa.Super. 68, (1971); Commonwealth A.2d ex Kozlowski, rel. Kozlowski 106 A. v. (1954). 2d 676 Unless there has been a clear abuse discretion, we will not interfere with the determination support proceeding. g., the lower court in a Com- E. Pa.Super. 320, monwealth ex McCuff, rel. McCuff 175 A.2d 124 bar,

In the case the lower court ev- refused admit idence of the declaring husband’s infidelity, a hus- band’s misconduct is not relevant a determination of a right wife’s appellee, joined by the dis- sent, would have us affirm the action of the lower court adopt the inexorable (1) rule lower court may not consider proceeding husband’s misconduct support vacate a alleged wife’s on the of her basis (2) proven, and that if a wife’s unless encouraged condoned or deprive her husband, will support. After consideration, careful we conclude holding that such a incorrectly would restrict the lower range court’s might, therefore, review and in certain situations, inequitable an induce decision. support position, their appellee both the and the rely heavily

dissent upon opinion our in Commonwealth 540

(ex rel., Appellant) Crabb, Pa.Super. 209, 180 A. 119 (1935), where we stated: original upon

“Undoubtedly, support, order of proof infidelity fully husband, war- of the was ranted, jus- not the misconduct of the husband but did tify as wife to conduct herself such a manner unworthy made her of her husband. predicated only upon The order of not worthy entry, that she is the time of but .fact at during pendency. As worthy she its continues to be opinion: well in the court’s are a loss stated ‘We at why how effect of the husband’s understand or im- adulterous relations can allow be construed port leave, subsequent- license or the wife to ” excuse to ly enter A. at into similar Id. at relations.’ Brobst, 903; see rel. Brobst v. also Commonwealth ex Pa.Super. 96 A.2d 194 Despite holding language, however, our Crabb solely proposition court was to the that the lower limited power support payments has the to an adul- to terminate similarly though cul- terous wife even her husband pable. Specifically, we that: declared holding where are to be as

“We understood parties misconduct, guilty both have been sup- of the wife shall be an absolute bar misconduct port upon to bal- proceedings; nor is the court called misdeeds, against but ance other their mutual each where, in its present proceedings, in the the court not dis- we shall support, reasonáble discretion denied Id., A. at turb order.” 903-04. propo- language provide support does not may properly to consid-

sition that the lower court refuse proceeding er evidence of a husband’s misconduct Crabb al- terminate lower court in a wife’s infidelity. lowed before it evidence of the husband’s Here, accept such evidence. court declined to lower

541 question The us a before in whether lower Crabb was may par- court vacate a wife’s both award where guilty ties are Here, we must determine whether a evidence of misconduct husband’s is relevant proceeding in question support. to vacate a wife’s by holding was not in answered our Crabb.

The holding restricted in nature of our Crabb has been recognized Brobst, on several occasions. In Brobst v. Pa.Super. 171, 174, 173 (1953), 96 we 194, A.2d 195 stat may ed that fact that a husband’s own conduct “[t]he preclude a divorce from committed a wife who adul has tery necessarily duty does preserve legal sup port (emphasis added) her.” in further held We parties guilty Brobst that where both are vacating court below did not abuse discretion its payment “under circum the wife (emphasis added) stances.” 195. at A.2d at Id. 96 language quoted approval in Brobst with Pa.Super. Young Young, Commonwealth ex rel. v. (1968) rel. A.2d 659 ex and Commonwealth Levitz, Pa.Super. Levitz v. A.2d 581 Similarly, McCuff, in Commonwealth ex rel. McCuff supra, appellant we true, stated that is of course “[i]t argues, support may that an order of be refused, va-. cated, guilty infidelity, where the wife notwith standing guilty fact husband is likewise precludes obtaining misconduct which him from di (emphasis added) 322,175 vorce.” Id. 196 at A.2d

Several conclusions from these drawn cases, cases. Brobst, two court Crabb and this has implied in dicta does not consider a husband’s adultery to be relevant to a determination of.a wife’s right Notwithstanding language, this how ever, this court has never instructed the court below to partic refuse consider such evidence its review of a contrary, implied ular To the case. court had all particularly Brobst, holdings, of its in such evidence that properly scope review. is the lower court’s of within Thus, present, disparity exists of inexcusable direction dealing writings comment conclusion in our between problem. the the to with dicta, instant do subscribe We lan- found in and Brobst and such Crabb disaffirm guage. order previously stated,

As of an the termination support below of rests of the court within the discretion depends upon Act of equities of the case. The amended; May 28, (48 227, 131, 1970, P.L. 1 P.S. as § § (17 19, 1939, The Act of 1 P.S. June P.L. No. 250, § By 263). urging that a us to court below direct § upon right automatically support wife’s to is defeasible proof appellee of her and the would dissent ignore legislative appellee exhorts us The mandate. hus nefarious, no that how the conduct of matter or con except band is of moment to show no condonation cases, loath Normally, support are nivance. in we judgment of court below substitute that our for opportunity which has the demeanor an to observe appeal, we present they Thus, witnesses on evidence. support there a will not unless disturb an order of fixing the in clear abuse the court below of discretion upon a amount of the order or unless is based' award ex misinterpretation g., Commonwealth law. E. Pa.Super. A.2d 675 Collins, rel. Collins 331 that from the record unable conclude We are the low equities present of the case are so clear payment er vacate the court no recourse had but charged support it once a wife determined transgression true. Crabb, explains appellee, citing a wife

may support from her husband she con receive unless unworthy ducts herself a manner of his manner, con Once the wife such a no similar behaves of the duct husband will work to excuse the wife’s action. disparagement Thus, although has acted husband status, of the he marital is relieved of his support agree appellee that an wife. with the act We give part a on the of the husband does not wife, by morality personal dignity, unrestrained right to act forever in a licentious and still com manner Support laws, mand from her how husband. ever, rewarding promulgated purpose were not good a wife’s An behavior. order of seeks to se cure a reasonable allowance for the maintenance charge wife so that she not become of the state. Bassion, Commonwealth ex rel. Bassion v. although (1974). Thus, A.2d is true only

the justify cause which will a husband’s refusal support part, wife is conduct on her such as ground which divorce, would be a Common valid for wealth ex rel. Herman, Herman v. 95 510 (1929), we solely upon must not focus our attention the reviewing right support. wife’s conduct in her We must look at present all the circumstances in each case. If we mechanically apply appellee’s were to the inflexible rule, if we entirety, did not then view each case in its certainly eventually inequitable we would occasion an support. termination of example,

For agree- we with Justice Cullen of the Chief Appeals New York State Court of . .a sin- that “. gle act of part wife], possibly [on of, long past, repented committed at a time sincerely and should not enable her without husband to cast off support, though living may he be life of continuous and a [open] profligacy.” 409, Hawkins, Hawkins v. N.Y. 193 Dissenting 86 (1908) J., (Cullen, N.E. C. Opinion).1 especially if the wife would be true majority opinion it was stated that also to “[i]t borne in mind that this is not a case where has been the husband continuing living profligacy wife while he cast his off single Hawkins, 409, 412, offense.” Hawkins v. N.Y. 86 N. E. Thus, although the court Hawkins ruled hus- her indigent

should also be absent rarely particular Although situation band. this pro- arise, possibility should the mere its occurrence restricting discretion vide sufficient reason avoid of the lower court. its discre court abused the lower

We hold refusing of the husband’s tion to consider evidence the low action If we were to affirm misconduct. legislative disregarding court, er direct would be we the status elevating misconsidered dicta mandate and binding this case remand precedent. therefore We opin hearing with for a consistent court below ion. ap- appellee also contend dissent Here, the

pellee-husband guilty connivance. was not separation their years before wife testified that for two re- had her and for two one husband half afterwards somebody peatedly so “[p] find implored her to lease itself, (N.T. 75) By pay you support.” won’t have to agree husband we reveal the record does not However, this situa- had connived at tion, proposition that we further for the find miscon- lower court of a husband’s must review evidence proceeding duct in wife’s to terminate a very to is difficult establish. often

Connivance actively in easily It is most ascertained where a husband temptation lays company or troduces into his wife lewd way purpose procuring in her the her despite sup- right that adultery, a husband’s a wife loses her to port if she commits lim- it is evident the court iting Thus, particular its decision to the case before it. Hawkins may not proposition be used for the a is conduct husband’s right never relevant to a determination of a wife’s to “ 2. We do not advocate that bal- the court below . . . against ance parties’] each other mutual Com- [the misdeeds.” rel, Crabb, 212, (ex 209, monwealth Appellant) Pa.Super. v. 119 (1935). fact, 180 A. strongly 904 In we action. resist such merely We hold the court below a must consider husband’s may properly misconduct before it exercise its discretion.

545 g., Pa.Super. Teresi, E. Teresi A. (1933); Clawell, Clawell v. On hand, very perceive the other it is to when difficult employs his to husband more subtle means to induce wife adultery. However, instances, commit in both hus- culpable. determining validity equally band is connivance, defense of must be we convinced invited, merely permitted, husband not his wife’s adul- tery. only if to we are review all can done able Certainly, persistent, husband’s conduct. perhaps cruel, predisposed the statements the husband appellant to must now associate with another man.3 We merely determine en- whether the husband did more than courage appellant other men. Did he scheme date provoke adultery? cunning possible Is is not that a may successfully long husband induce his resistant and loving adultery by highlighting wife to commit his con- suggestion tinual that she the flaunted see others with reality of adultery? his own I believe so. The hus- highly significant determining band’s are actions his intent. The lower court it should before all of the evidence of the husband’s misconduct when reviews charge Here, least, very connivance. at the the rec- ord, presented, puts question into the husband’s mo- seeking tives in payment to terminate the Certainly, object wife. he does to her conduct be- morally outraged. cause he existing support is predicated upon previous award is violation of the escape marital merely status him. He seeks the fi- supporting nancial burden of her. We believe that incomplete record and that we are unable review properly allegation of connivance. We therefore re- mand this hearing case to the court below for a to deter- appellant 3. The court below found that had committed adul- citizen, tery Jerry Filiatraupeau, with one a Canadian on several years parties occasions in late over two herein separated. had al- husband’s of the circumstances mine extent and the leged pro- with a to the court below is remanded

The record cedendo. opinion dissenting in which J., CER-

SPAETH, files a joins. J., CONE, dissenting:

SPAETH, Judge, we cases most difficult certainly one This is principles of pertinent hand, the one have On the had. oth- clearly theOn long-settled stated. are law both those the through evolution hand, having worked er the applied the facts them to principles, having abiding sense profound and case, left is with one the is so why this is The reason dissatisfaction. be, unjust. they are principles, settled as judge princi- A applying confronted with the task of ples of law most conscientious reflection appear unjust naturally will feel- become restive. This ing, however, changing the judge does not in warrant (what thing) re- principles, or in amounts to same judicial fusing principles to abide If are of them. change may warranted, although origin, consideration be given will to the with values associated rel. ex doctrine of stare decisis. See Commonwealth Andreas, A.2d Gonzalez however, principles (concurring opinion). If, (1976) they statute, unconstitu- unless are are embedded event, he judge apply them. In such an tional the must should, protest my he with may, opinion vigor, persuaded change legislature will be hope that the the statute.

Here, majority has followed neither of these cours- es of action. Instead, restiveness, its share, which I has it law, led to misstate the doubly awith re- unfortunate By sult. stating that really law is other than majority has possibility legisla- both blunted

547 tive reform and has formulated a rule that the lower courts apply. will be unable to

In the case at petition hand the husband’s to terminate obligation his support to pursuant his wife was filed to Pennsylvania Support Civil Procedural The Law.1 granted lower court petition because it found that wife had adultery. appeal committed wife On contends that the lower court abused its discretion be- cause it testimony refused to admit that the husband had also committed

As I ensuing believe show, discussion the low- will er court merely testimony. excluded irrelevant I would therefore However, affirm. I wish also to note the in- justice of principles ap- of law that the lower court plied reaching its decision.

In what follows I shall undertake to summarize the pertinent principles of law.

A purpose support provide dependent is to spouse living with a reasonable allowance. Common Bishop Bishop, wealth ex rel. 341 234 (1975); Bassion A.2d 153 ex rel. v. Bas Commonwealth sion, Pa.Super. 541, (1974). A.2d 822 The obli gation provide support imposed is incident of the as an unity. relationship, marital which is conceived as a Com Pa.Super. 428, Roviello, monwealth ex rel. Roviello v. (1974); 323 A.2d 766 Commonwealth ex rel. Lebowitz v. Pa.Super. 593, (1973); Lebowitz, 227 307 A.2d 442 Com Berfield, Pa.Super. 438, monwealth v. 51 A.2d 523 obligations unity severed, When that is inci divorced, dent to cease. When a husband and wife are obligation therefore, support the husband’s his wife 13, 1953, July seq. § Act of P.L. 62 P.S. 2043.31 ct separate ceases; only, a husband and wife when obligation unity severed, is marital not husband’s support fol- his therefore continues to exist.2 It wife apart establishes, if from lows that a husband before or grounds itself, di- an action for divorce that he has vorce—that his wife has conducted in a manner herself contrary obligations to her marital result to estab- —the unity lish severed, that the marital has and that been his wife has therefore ceased. Specifically, if a wife commits does husband support her; she demand as an unity only incident of the if marital her behavior is con- unity. sistent with that

B n effect, principles, if what should be the Given these adultery any, when on the basis of a husband’s own obligation adultery to to his wife’s he seeks terminate (ex rel., Appel- support? provide her Commonwealth Pa.Super. 209, (1935), lant) Crabb, 180 A. 902 119 v. gives question. to us answer opinion approval quoted this court with Crabb a loss to are at court, which stated: “We of the lower adul- why of the husband’s or how the effect understand import allow construed to relations can be terous subsequently enter leave, license or excuse to the wife A. at 903. 180 into relations.” Id. similar it is support, demands explained a wife court that when must examined; who it is she that must be conduct 2. For with clarity examples the sake of are consistent used hand, case at as party refer to entitled wife, party It obliged provide support and the as the husband. however, noted, Support must be that the Penna. Civil Procedural provides pronoun in this Law used masculine when “[t]he act shall P.S. 2043.32. be construed to 62 include the female.” Equal required any be construction would in case Constitution, Pa.Const., Rights Pennsylvania Amendment I, May 1971), There- (adopted art. section 28 discussed infra. income-pro- provide support upon fore the falls ducing spouse regardless of sex.

549 sup- only order “worthy time of its at the [the worthy port’s] entry, to be but that she [must continue] pro- pendency.” conduct during its If wife’s Id. grounds “unworthy” divorce, vides is she critical, words, husband’s is not the What other grounds, presence i. ability divorce, to obtain a but the e., quality wife’s conduct.

When a ground husband sues for divorce on the of his wife’s he only will be if in- successful he is an injured nocent party. If the wife her own admits adultery but asserts that her husband has committed well, her defense to the action will be that of recrimination. Recrimination does not lessen the wife’s culpability, or conduct; does, however, excuse her serve to moving bar a party divorce since the is not con- injured. Berezin, sidered innocent and Berezin v. 186 Pa.Super. 340, (1958); 142 Rech, A.2d 741 Rech v. Pa.Super. 401, (1954); ex A.2d Commonwealth Brobst, Pa.Super. 171, Brobst rel. v. 96 A.2d 194 (1953). When the support, support wife seeks will be appears denied if it that she has committed Young Commonwealth Young, ex rel. (allocatur refused); 247 A.2d 659 (1968) Common-

wealth ex Roviello, supra; rel. Roviello v. Commonwealth Pa.Super. ex Goldstein, 194, rel. Goldstein v. 105 160 A. proves 158 If a wife that her husband has also adultery, committed she has made out the defense of re- crimination, ground which would bar a divorce on the adultery, but she has not quality altered the of her own Therefore, support. get conduct. she does not Common- Young supra; ex Young, wealth rel. v. Commonwealth ex Brobst, Brobst supra. rel. v.

C principle that wife adultery a who committs loses right her principle to not an isolated but is principles rather consistent with other that have evolved 550 respect

with to the defenses of condonation and conniv- ance. voluntary right

Condonation is the abandonment to divorce based the marital on renewal of relationship adultery. knowledge Common Pa.Super. 494, Sanders, wealth 187 144 A.2d 749 v. (1958); Pa.Super. 235 Teresi, A. Teresi v. 109 167 Pa.Super. (1916), (1933); Clawell, allo 63 Clawell v. 88 wife’s Thus a “condones” his catur husband refused. her, he with believ conduct when has sexual intercourse ing a wife that she committed When has proves condonation, only not her denied will husband be complain of that which he a divorce—because accepted previously will be deemed he had the wife —but prior restored her Common to “blameless” condition. Pa.Super. Young, supra, Young, wealth ex rel. v. misconduct, it n. 1. Her 247 A.2d at 661 n. to Therefore, proceeding were, longer no exists. proves support, her husband if a terminate wife proves that she is “blameless” condoned she “worthy” support. can The husband therefore deny support. divorce, nor neither obtain a spouse’s corrupt adul- consent Connivance is the wife, in- tery. prostitutes his It occurs when a husband company, or lures otherwise troduces her lascivious Murphy Murphy, 204 Pa.Su- her into See misconduct. Wotherspoon per. 576, (1964); v. Woth- 205 A.2d 647 Pa.Super. (1933), alloca- 309, 164 erspoon, A. Heikes, (1926), refused; Heikes v. tur “con- If a is found husband allocatur refused. again misconduct, he not be able at his wife’s will nived” blame- complain later, she will be deemed about denied, he will will be for divorce His action less. obliged provide still be

D apparent it the cases is examination of From this In both following principles law are settled. proceeding crit- an action for divorce the party seek- inquiry is to the conduct of the ical directed ing be rele- The conduct will therefore relief. husband’s only quality of his to the extent that it affects vant merely proves Adultery conduct. recrimina- wife’s quality the wife’s con- tion have no effect on the can proceeding duct; in in therefore irrelevant will be obligation to of his which a husband seeks termination provide alleged, is a hus- condonation When resuming his wife will band’s intercourse with conduct his adul- be renders her “blameless” —but relevant —it alleged, a tery is relevant. connivance will Where only if it constituted will be relevant husband’s wife into her otherwise lured his conduct that induced or misconduct.

II explain shall now why my undertake opinion majority law, has and has formulated a misstated rule that the lower apply. will courts be unable to

A majority recognizes (ex The in Commonwealth rel., Appellant) Crabb, supra, this court terminated the wife’s adultery, despite of her because finding that had also committed husband majority The holding states does not mean that evidence a husband’s misconduct never is admissible. true, extent, This is however, only to the to the ex- tent, that the directly husband’s misconduct relates to the majority wife’s. claims that evidence of the hus- band’s adultery instances, sup- in other relevant port position quotes following its from Crabb: “We are not to holding be understood as that where both parties guilty misconduct, have been . . . sup- misconduct of the wife shall be an absolute bar to port proceedings Id., ..” . .

552 language way supports A. at in

180 903-4. This no majority’s position; simply prin- it is consistent with ciples been law have summarized above: wife’s misconduct not in an “absolute bar” those two may dissipate situations husband’s conduct where the e., conduct, of her effect own i. condonation and conniv- ance. majority, rule,

The unsatisfied with cites various cases, they point. are but not In ex Commonwealth Pa.Super. A.2d Levitz, 438, 150 581 rel. Levitz v. 189 Brobst, (1959), and Commonwealth ex Brobst v. su- rel. pra, support parties was denied because both were found adultery. In Commonwealth ex rel. committed Pa.Super. 320, A.2d 124 McCuff, 175 v. McCuff (1961), committed where a found to have husband was adultery, support the evidence was continued because In was insufficient establish wife’s supra, Young Young, where Commonwealth ex rel. parties found was also were denied because both explains the adultery, to have committed one footnote recrimination, no effect on between which has difference adultery, condonation, restores the wife’s which Id., at 519 n. a “blameless” condition. this distinction The A.2d at 661 1. effect n. v, Sanders, 187 Pa.Su- was manifest Commonwealth per. 494, (1958), had the husband 144 A.2d where adultery not therefore condoned his wife’s proceeding for permitted to her to raise it a defense short, contrary majority, the cases to the Crabb, reit- are not inconsistent but instead with particular erating circumstances illustrating adultery husband’s will be relevant. which

B majority require the would lower courts admit evidence of the husband’s in circumstances addi- recognized by However, tional to those cases. explain circumstances majority does what additional means; only says determine whether it that “we must pro- in a is relevant of a husband’s misconduct evidence Majority Opinion ceeding support.” to vacate a wife’s connivance, how- If not relevant to condonation inescapa- ever, conclusion seems relevant what? The ble husband’s to admit evidence of the conduct, could even on the wife’s when it had no effect the two only juxtaposition to—a result in—be relevant fault, so parties more at blameworthy who was to see greater, the fault were that if the husband’s she greater, the continue, were while if the wife’s would balancing provide required to for herself. would be majority precisely the however, what equities, is In Opinion 970, f.'n. 2. at claims it does not advocate. balancing is recognizes majority that such addition, the v. prohibited Appellant) (ex rel., by Commonwealth to bal- Crabb, supra: court called “. nor is the . . ”. against . . misdeeds ance each their mutual other Id., 212,180 903-04. at atA. only

In these not circumstances I can confess that I do majority opinion. understand the It to contem- seems plate adultery is not rele- evidence the husband’s that deciding vant either conduct to whether the husband’s party the more deciding affected his wife’s or to is which blameworthy. evidence, If is such I am at a loss there suggest purpose be, divine its I what would equally lower courts will be at a loss. majority compounds it has created the confusion dissenting opinion quoting approval with Hawkins, (1908),

Hawkins v. 193 N.Y. N.E. though However, consistent with were Crabb. majority Crabb this cited and followed the court majority Hawkins, Hawkins, the dissent. In opinion, despite the husband’s adul- concluding recovery, adultery precluded tery the wife’s own states: appellant

Of course, seeking if the were affirmative relief, subject important conduct would be scrutiny, ap- rule strictest no other should be being against plied urged respondent. to him than respondent legal But he is is seeking not. The alone my opinion only question relief and in re- material lates to her act. supra It Hawkins,

Hawkins at N.E. at 470. say quite majority is therefore here to misleading for the limiting that “the court its decision [in Hawkins] particular Majority Opinion before it.” [facts] contrary: Crabb, f. n. 1. To the Hawkins, inas general inquiry the court enunciated a rule —that seeking re- only party should on the conduct focus lief. majority inequities re-

Finally, the refers to irrele- sult if is held evidence husband’s entirely agree say about vant. and shall more majority part opinion. in the last What ignores, however, present Pennsylvania law is that under provide support from does not derive dis- equity rather, considerations of as but has been marital premise incident of cussed, from the that is an unity by relationship, which is defined as a severable injustice created premise, misconduct. no Given pay requiring that a wife who her husband wants living expenses, only as a for her of her status because together wife, she live and not because and her husband provides home, or she a services within must act as wife.

Ill appellant, As the Heilman contends the low- Mrs. respects: refusing er in court erred two receive adultery Heilman, husband, evidence of the of her Dr. finding appellee; who is and in not that she had out An made the defense of connivance. examination prin- these contentions will serve to how the demonstrate ciples applied. described above are to be

A Appellant friend, that male whom she had admitted a airplane, spent days met on an several her home on separate two August 1974, occasions —in and on the Thanksgiving weekend before It November 1974. on granted basis this evidence that the lower court appellee’s petition to terminate his appellant. Appellant does not contend that lower finding adultery. court erred in that she had committed Rather, just noted, as she court contends that lower refusing adultery erred in to receive evidence of the appellee. Testimony was introduced that on the weekend Thanksgiving before dance held at November by appellant accompanied by local club was attended friend, by appellee accompanied by her male a Mrs. Appellant attempted Sloan. to introduce evidence of a trip by appellee extending Rico, and Mrs. Sloan to Puerto from (immediately November 26 to December following dance). the weekend of the court The lower evidence, only purpose prov- received this but for the ing appellee’s expenses they ability to his related provide support; the court refused to receive evi- purpose showing appellee dence for the had com- adultery (N.T. 39-42) mitted with Mrs. Sloan.

It sup- assumed that the evidence would have ported finding appellee had committed however, could no relevance have to the de- condonation, fense of allegation since there is no of mari- tal any reunion. Nor could the relevance to the connivance, defense of since the evidence tended to appellant’s show it adultery; had occurred after consequently, appellee’s adultery could not have consti- tuted conduct appellant induced or otherwise lured adultery. into only possible her relevance of the evi- appellee dence could be to a demonstration that —was guilty also of misconduct, which should be balanced against appel- thereby reduce the blame attached balancing, lant because of her how- misconduct. precisely ever, (and also, as has what the law forbids precisely majority discussed, been what claims do). apparent does the evi- not want It thus is appellee’s adultery relevance, dence of had no and was properly therefore not This left lower received. appellant’s adultery court with evidence of alone. Under appellant cases, discussed, which when have been relationship unity committed marital ap- severance, appellee severed, with with that pellee’s obligation support appellant There is ceased. authority appellee’s no to the effect that later support appellant. somehow revived his

B Appellant appellee’s con- also introduced evidence prior Although apparently duct to her did she argue point this evi- below, now contends that she dence out the made defense of connivance..

Appellant testified as follows: Q: you any Did ever discussion and the doctor your dating?

about Oh, yes, A: sir. [Mrs. Heilman] Q: you Can tell us when that first occurred ? long ago. years separated.

A: A time Two before we Q: years you separated? Two before Yes, A: sir.

Q: What was the occasion for that discussion ? A: Spain, We were in marriage and the was not

going well, my husband then at time said, “I cannot afford a divorce. till will wait you somebody.” find you you

Q: separated did he ever have after And your dating? any about discussions Yes, A: sir.

Q: you us first occurred And can tell when that

your separation? Right away, couple A: weeks. within the next Q: ? And what was the nature of discussion pay somebody A: I “Please find so won’t have you support.” on on on and And went past years. two-and-a-half (N.T. 74-75) testimony:

Appellee did not contradict this Q: any you your Did wife have discussions ever you told separation her or

after her where asked go on dates inquired if out her of her she would get find some man to married ? go find A: If I her to out and asked [Dr. Heilman] dates ?

Q: Yes. may up A: It I recall. have come in discussion. don’t Q: you you you’ve say you recall, know don’t When you

had the remember what discussion but don’t the terms itof were? type I’m not

A: sure that we discussion. may I I have had it. don’t recall.

Q: you Did her where ever have a discussion with you

you get told her if she would married regard your support would off the hook in payments ? possibly

A: I said that. Q: you And the context of that conversation did going doing, was she

ever ask how she was out, you go out or that wished that she would more often?

A: I’m not sure. have said that. Q: during period And of time on occa- different you joint

sions have been at with Mrs. affairs Heilman ?

A: affairs, yes, Joint Thanksgiving dance. Q: right. All you And were aware of the fact that you?

she evening, had a date that weren’t A: Yes.

Q: you Did any and she have discussion about ? A: No.

Q: you Did anything ever Jerry ask her about ? A: No.

(N.T. 48-49) Generally stated, testimony appel- reveals that when appellee lant and separated, appellee to wanted terminate his to appellant, encouraged her to date. appellant’s counsel, appellee words of “told her get that if she would married would that [he] be off regard the hook in support payments.” to [her] (N.T. 49)

The foregoing was insufficient to make out the defense already connivance. As discussed, part in the first of. opinion, connivance consists of two factors: behav- by ior the husband that induces the adultery; wife’s corrupt consent —the husband’s intention to induce the adultery. Thus, connivance occurs when a husband “procures” his adultery, Wotherspoon wife’s v. Wother- spoon, supra, or “intentionally lays wife,” a lure for his Fisher Fisher, 74 Pa.Super. (1920), or introduces her company,” into “lewd Clawell, Clawell v. 63 Pa.Su- per. agree I majority with the that a hus- band’s may behavior represent well subtle, a distin- as guished from a crude, inducement, and that all of his conduct be relevant to show connivance. Whether particular behavior can be deemed an inducement is a question fact, by judge best decided who heard testimony. However, spouse may one not re- disclaim merely sponsibility because her conduct for his or ques- The necessarily disapprove. spouse did other to do wife tion is not whether husband allowed action, and her did, he induced which she but whether (as Appellee’s corruptly statements consented to it. you find some- quoted till appellant), “I will wait you pay somebody to body,” I so won’t “Please find appellant support,” hardly inducement amounted an counsel, argued by her Instead, to commit . they get married “told if she would regard be off hook [her] would [he] payments.” majority agrees opinion, I

As understand its connivance. out was insufficient make evidence tes- would, however, for additional majority remand might agree timony regarding appellee’s conduct. ad- of relevant remand, such if there been offer had an changed testimony conceivably have might ditional testimony offered only However, the the other result. trip Rico, which occurred to the to Puerto related appellant’s adultery.

IV majority ac- making argument has the After that argues the lower appellant alternatively that cepted, adultery appellee’s of court’s refusal to receive evidence Rights Equal Amendment represented of the a violation Pennsylvania to the Constitution.3 Pennsylvania already supra, noted, As footnote Support provides that masculine Civil Procedural law pronoun There- the female. be to include shall construed principles discussed, and fore, the law that been of acted, sex lower court are with accordance which they precisely re- apply manner neutral: the same “Equality rights be of law shall denied under not abridged Pennsylvania in the of of the Commonwealth because Pa.Constitution, I, P.S., sex of the individual.” Art. Sect. 28 (adopted May 18,1971). gardless seeking Suppose party of the sex of relief. proved, might a husband his as that he be able do, obliged wife was him. His wife could have adultery. In terminated because of proceeding, such a wife’s termination evidence adultery irrelevant, be show would it tended to unless she had In oth- connived at her husband’s words, compare er the law does not the two acts —the husband’s and the wife’s—and make evidence one admissible and ac- evidence the other inadmissible cording actor; merely provides to the sex the law party seeking relief must be without fault.

V beginning At the opinion prin- I stated that the ciples of apply law that we deciding must present case are unjust, and changed. should therefore be what follows I shall undertake to illustrate the nature of injustice, explain why change and to come must not from the legislature. courts but from the

A is It an old observation accomplish justice, principles of rigid. must law too always “Law is general statement, yet there are cases which it is not possible to general cover in a statement.” It in or- der to decide such cases distinctive doctrines equity developed. were “Equity” may be defined “a rectification of law where law of its defective because generality.” praetor permitted Eoman “[T]he new ac- tions and defenses in instances where civ- the ancient ius ile was found rigidity defective because of its and nar- rowness . Similarly, early . ..”6 Chancellors Aristotle, Ethics, 4. Bk. V. The Nicomachean 5. Id. Bodenheimer, Jurisprudence (1974).

6. E. developed in- remedies conceived as a correction system flexible of the common law.7 principles concerned which we are law with equity; in- provisions here make no for considerations deed, equities discussed, as has been to balance respective As parties’ expressly positions is forbidden.8 injustice result, is inevitable. injustice so far persauded

I occurred am not that has appellee appellant marriage was is concerned. Her appel- affair, her she and marriage, second her suspect she separated, openly; lee had conducted losing knew the risk ran husband’s she her addition, there is no evi- before, she worked has However, one dence that she cannot herself. may readily suppose another case in which same principles produce would indeed a result law generally would manifestly Suppose, be seen as unfair. example, middle-aged, the wife is and has no ability age herself, simply because of her skills, being but because she has no marketable spent taking case because life she most of her adult has Suppose care of her husband, raising their children. couple further separates, that the the wife and that has a single discreet say, affair. To say, as the now law does thereupon right support, she loses all if even openly husband has having another, been one affair after seems manifestly very unfair. It is well to cite occa- all sional laws and court decisions to the effect that women should be treated on the men; same basis as the fact re- mains that more often they than not are not treated equally. generally See Davidson, K. Ginsburg R. and H. Kay, Sex-Based Discrimination Given the eco- nomic society structure of our attitudes, and its social 11; 7. Id. at n. 249-51. general ju- Pennsylvania equity has no “It is well settled in

8. & M. Freed- marriage risdiction over man, and divorce.” A. Freedman § Pennsylvania Marriage 108 at 261 and Divorce in Law of id., § generally (2d 1967), and see ed. of her adult spent most middle-aged woman who has the likely find, to earing children is life her husband and po- precarious marriage up, she is if her breaks sition indeed. depriving appears

It once have the case that to been right I of the to such wife described as regarded suggest, manifestly how- unfair. I was not widespread ever, male at- that this was so because part husband, infidelity the while titude that on the of to be perhaps quite prerogative, nevertheless was women, oth- expected aspect virility; on the of his as an expected, peril, to remain chaste. hand, er their were at hypoc- to mere recognize be this double standard We now risy. sexes; changed attitudes towards the than our

More has style temper no present the law the intellectual discussed, respect. longer our As has been commands obligation premise present is that the law relation- provide support of the marital is incident an unity. Accept premise, ship, conceived as a which is inexorably: syllogism, present as a and the law follows pro- severed, obligation unity marital once the accept longer can However, we no vide ceases. reasoning premise. from It us strikes as scholastic day M. it is. See A. Freedman another indeed —as Pennsylvan- Freedman, Marriage Divorce in Law Pennsylvania (2d di- 1967) (derivation of ia ed. § law). English is not vorce law from ecclesiastical longer engage ab- suggest no law should per- recognize, reasoning. Still, we stract have come case, that readily haps has been than sometimes more yield to, or symmetry logical must considerations of experience.9 tempered by, least considerations hardly place jurisprudence. essay This is for an on general point Holmes, passage made in the famous opens (1923): The Common Law logic; experi- The life of the law has not been has been time, prevalent ence. The felt moral and necessities of the present changes, persuaded Given these am changed. Instead premise of the law should also be in- being as an provide support defined terms unity, be defined it should cident of the marital circum- from the expectations that justifiable of arise the so- and being married, the economic from stances of and view, society. considera- while In this cial of our realities on fault of given presence or absence tion to the would be not this would spouse seeking support, part of the there consideration; in addition always the decisive be other of the conduct into account would be taken might pro- spouse, other factors and the numerous receiving such support, expectation of justifiable duce a par- earning capacity of age, background, and as present income of marriage, ties, of the the duration physical health. mental parties, their and and equi- support, of the all spouse seeks words, when a other mis- merely as defined fault considered, be ties should for divorce. support an action conduct that would B obligation of the of the basis altered definition revolu- provide support by novel or is no means either tionary. applied obligation pay It has been to the ali- mony divorce, equally applied after and be to the could provide support divorce, before as has been recently by demonstrated a notable article Francis J. Morrissey, Jr., Philadelphia of Except Bar.10 for political theories, public policy, intuitions of avowed or uncon- scious, prejudices even the judges fel- which share with their low-men, good syllogism had a deal more do than the determining governed. rules which men should perhaps

The necessity classic statement of the much to consider logic more than is Cardozo’s The Process Nature Judicial Pound, R. See also Philosophy of Introduction to the Law (1954); Cahn, Injustice E. (1949) (“The Sense sense of injustice against unequal by revolts caprice.”). whatever is Morrissey, Pennsylvania A Alimony Equitable Primer for Distribution, Assn.Qtly., Pa.Bar Oct. 1976 at 503. only jurisdiction in the Unit-

Texas, Pennsylvania is the alimony provision not make ed that does States alimony say provision for is not to divorce. This Morrissey As Mr. not be with difficulties. attended observes, issue,

Surely one which most basic the subtlest and alimony concept permeates vexes the whole of ei- distribution, not the property fault whether bringing party the breakdown ther about alimony marriage to the award should be material property.11 or the distribution of marital states, legislation has been Nevertheless, in a number providing for have construed as enacted that courts alimony The results there has been fault. even when Morrissey points sen- To most vary, me, Mr. out. “ ground”: he middle sible is what he describes as [t] making permitting but the fault an absolute bar awarding ali- to such fault into account court take distributing property . .12 mony marital . . important years some regard it to note that In this obligation to ago Pennsylvania the law of defined the very like the pay alimony in terms much after divorce sup- provide obligation I in which the terms believe Pennsylvania’s port should be defined.13 before divorce may comprehensive to have been first law be said divorce 150, 18, 1815, Sm.L. 286. the of P.L. Act March no but made various causes divorce Act established By provision spouse amend- divorce. for either provided May 8, 1854, that an ment, the Act of P.L. on permitted a divorce to obtain innocent husband was on the man- ground treatment the of cruel and barbarous alimony. datory the court award his wife condition that amendment, 25, 1895, By Act P.L. the of June further 11. Id. at.507. Id. at 508. id. 503-04.

13. See permitted 308, provided obtain a husband ground indignities; of alimo- divorce on the an award ny to for cruel treatment a wife divorced and barbarous indignities discretionary or for the court. was made with underlying The were sum- attitudes these amendments by Supreme Miles, marized in Miles v. 76 Pa. Court as follows: (1874), plain alimony subject makes this On law plaintiff; on difference between a husband and a wife ground duty probably once that the of maintenance upon released, him is assumed not to be and thrown public, good without He dissolve reason. alone, tie him to her which binds so far as makes his condition burden- intolerable and life some, family but as head of the the maker wealth, duty its he is not to be relieved from a which humanity rights society and the him to ful- demand fill.

C foregoing I should like to from the be able conclude considerations that this court could redefine basis provide support.14 however, believe, irresponsible. that that would be above, ability apply

14. mentioned and other factors equitable considerations, amply awarding support has been Painter, by Judge demonstrated CONSODINE in Painter N.J.Super. Judge set 287 A.2d 467 Painter the applied guidelines post-divorce forth and similar for the award of alimony property. Judge and the distribution of marital CONSO- DINE wrote: spectrum litigation Guideline criteria over the broad of earning (1) background this area ability respective age, include: and parties; (3) marriage; of the (2) the duration of the (4) living parties marriage; standard of during of what the the money (5) property brought marriage; or the the each into present acquired during parties; (6) property income of the the either, acqui- marriage the parties; (7) of or both the source sition; (8) capacity of producing the current value and income property; (9) the parties to the the of the debts and liabilities marriage; (10) present physical the mental and health parties; (11) continuing present employment probability the of overruling not one place, involve first would In the cases, relat- all of entire collection or few cases but an dis- other, the earlier upon as ing depending each to and place, second In the opinion has shown. cussion important consideration however, is the more there of By Act the precluded legislature such action. has repealed legislature 4, 1925, 124, April P.L. 1895, su- and by the Acts of 1854 effected amendments alimony di- no pra, there has been since then and Pa. illness. 23 vorce, except mental in certain cases of Steinke, 238 45, 48; see Steinke v. C.S. §§ opinion). (concurring Thus (1975) 74, 357 A.2d 674 ob- plain legislature its determination has made provide ligation spouse financial assistance of one parties’ according to the is not to be decided other of justifiable expectations, after consideration as defined to be marriage, is rather but circumstances of all the unity. As this regarded of the marital as an incident Pa.Super. 507, Hooks, explained in Hooks court 245, (1936) 513, A. : appellant divorce as If the was entitled to an absolute it is rea- of his . . . wife, the result of conduct single fully to the he should be restored sonable that pay ensuing al- state, . . . with no [to imony] to his former wife. present future; earnings (12) effect distri- better in the support; ability pay alimony bution of assets on the (13) gifts spouse during marriage. from one to the other Id. at 287 A.2d at 469. appeal On derived Justice three other criteria MOUNTAIN added

from Marriage Section 307 of the Uniform and Divorce Act: (1) acquisition spouse Contribution of each the marital homemaker; property, including spouse contribution of a (2) property apart spouse; the value set (3) to each third by Judge criterion mentioned has been omit- MOUNTAIN duplicated (2) by Judge (4) ted because it listed CONSODINE.] spouse economic circumstances of each when division of effective, property desirability including right is to become awarding family home or the for rea- live therein periods spouse sonable having custody to the children. [the] Painter, 211-212, Painter v. 65 N.J. 320 A.2d reasonable,” I do not one is refer- think “it is whether ring alimony divorce or before divorce. legislature’s however, contrary opinion, Given recognized implement- the numerous cases that have opinion, ed that I now or- do believe this court by der the lower to a who court to award wife committing ground given has husband divorce, might equitable no an award matter how such only express hope legislature I can will that the be. persuaded changed the law be should be —not by opinion simply I course in this but what said others what who have considered the matter far more thoroughly say. than will meantime,

In the the order of the court was in lower law, accordance with the should affirmed.

CERCONE, J., joins opinion. in this

371 A.2d 979 Curtis DOUGLAS DOUGLAS, Appellant. Edith Superior Pennsylvania. Court

Submitted June 1976.

Decided March

Case Details

Case Name: Hellman v. Hellman

Court Name: Superior Court of Pennsylvania

Date Published: Mar 31, 1977

Citation: 371 A.2d 964

Docket Number: 1214

Court Abbreviation: Pa. Super. Ct.